# EDWARD J. WEDELSTEDT v. RON WILEY, WARDEN, FEDERAL CORRECTIONAL INSTITUTION—CAMP FLORENCE, COLORADO

> Court of Appeals for the Tenth Circuit · February 20, 2007 · 477 F.3d 1160

URL: https://www.frixlaw.com/law-library/cases/9499490

## Case

- **Full name:** Edward J. WEDELSTEDT, Petitioner-Appellee, v. Ron WILEY, Warden, Federal Correctional Institution—Camp Florence, Colorado, Respondent-Appellant
- **Court:** Court of Appeals for the Tenth Circuit
- **Decided:** February 20, 2007
- **Citations:** 477 F.3d 1160; 2007 U.S. App. LEXIS 3701
- **Precedential status:** Published
- **Opinion:** Dissent by Hartz
- **Judges:** Murphy, McWilliams, Hartz
- **Cited by:** 42 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9499490

## How later opinions describe it (automated extraction)

- rejecting BOP’s argument that it considered five factors in promulgating § 570.21(a) because “[t]he individualized nature of three of the five factors— the nature of the prisoner’s offense, the prisoner’s history and characteristics, and the sentencing judge’s statement — made…
- holding that statute governing inmate placement did not authorize BOP regulations limiting commu- nity corrections center placement until inmate’s final ten percent of sen- tence
- affirming grant of habeas relief under § 2241 requiring staff to consider factors in 18 U.S.C. 3621(b) to evaluate transfer to community confinement
- affirming grant of habeas corpus relief and requiring BOP to consider factors in 18 U.S.C. § 3621 (b) to evaluate possible transfer to RRC

## Opinion text

HARTZ, Circuit Judge
dissenting:
I respectfully dissent. Were it not for the fact that two-thirds of the circuit judges and a number of the district judges who have considered the matter have reached a conclusion contrary to mine, I would have thought this an easy case.
The statute at issue, 18 U.S.C. § 3621 (b), provides as follows:
Place of imprisonments — The Bureau of Prisons shall designate the place of the prisoner’s imprisonment. The Bureau may designate any available penal or correctional facility that meets minimum standards of health and habitability established by the Bureau, whether maintained by the Federal Government or otherwise and whether within or without the judicial district in which the person was convicted, that the Bureau determines to be appropriate and suitable, considering—
(1) the resources of the facility contemplated;
(2) the nature and circumstances of the offense;
(3) the history and characteristics of the prisoner;
(4) any statement by the court that imposed the sentence-
(A) concerning the purposes for which the sentence to imprisonment was determined to be warranted; or
(B) recommending a type of penal or correctional facility as appropriate; and
(5)any pertinent policy statement issued by the Sentencing Commission pursuant to section 994(a)(2) of title 28. In designating the place of imprisonment or making transfers under this subsection, there shall be no favoritism given to prisoners of high social or economical status. The Bureau may at any time, having regard for the same matters, direct the transfer of a prisoner from one penal or correctional facility to another. The Bureau shall make available appropriate substance abuse treatment for each prisoner the Bureau determines has a treatable condition of substance addiction or abuse.
I have no difficulty agreeing with the panel majority that this language requires the Bureau of Prisons (BOP) to consider the five listed factors (although it may also consider others) in deciding where to house a prisoner. The issue is whether this duty requires the BOP to address each of the factors with respect to the individual prisoner in every case. I think not. The BOP performs its statutory duty if it reasonably considers a factor when promulgating a general rule.
The five factors set forth in § 3621(b) are to be used in making housing determinations in a wide variety of circumstances. Some factors will be more important, perhaps much more important, than other factors in certain circumstances. Experience, or common sense, may reveal that in a particular set of circumstances one of the factors — call it factor A — simply cannot overcome the weight of the other factors. Accordingly, there is no need to engage in fact-finding or analysis regarding factor A in individual cases within that set of circumstances. Recognition of that reality is not contrary to a directive to consider all *1170 five factors. It is enough that the BOP has considered factor A in that context and determined that the outcome will be the same no matter what the specific facts regarding the factor.
Consider a prisoner sentenced to death for a terrorism offense. The prisoner seeks to be housed in a minimum-security facility. Is it really necessary for the BOP to check the prisoner’s file to see whether, under factor (3), he had bright spots in his history or characteristics? I cannot believe that Congress could have intended to require such useless effort.
We should read statutory language as if it were written by human beings. Say the company president sent out a directive stating:
Managers shall select the appropriate mode of transportation for each trip on company business by a subordinate, considering
(1) the cost of the mode of transportation,
(2) the travel time using that mode of transportation,
(3) the safety of the mode of transportation, and
(4) the impact of the mode of transportation on the appearance and functioning of the employee upon arrival at the business destination.
Would the head of the international-business division be fired for insubordination if she orders that anyone traveling to Beijing should travel by jet (not, for example, boat)? Of course not. And if one should read such a mandate in the real world as permitting general rules, I do not see why we should assume that Congress is using similar language in a more rigid, unreasonable manner.
A second, rather different, analogy may also be instructive. The laws of physics, which are entitled to even greater respect than Congressional enactments, may declare that a particular phenomenon — say, the path of a projectile — is governed by a function of five parameters. To calculate precisely the path of a projectile, one would need to measure each of those parameters and plug those numbers into the function. It may be, however, that in a particular setting the value of one of the parameters (at least within the range of that parameter that occurs in practice) makes no measurable difference in the path of the projectile. An engineer preparing a manual for those who need to know the projectile’s path in that setting would not be failing to consider a binding law of physics by omitting that parameter in the formula provided for calculating the path. The engineer had “considered” the parameter when determining that it could not affect the calculations.
Similarly, it would be consistent with § 3621(b) (although likely beyond the present power of social scientists and computer experts) for the BOP to develop a mathematical function for determining where prisoners should be housed. Section 3621(b) would require that the function depend on at least five parameters (one for each of the factors listed in the statute) and the function would have to be a reasonable application of those factors. The task of the BOP staff assigned to determine a particular prisoner’s placement would be to gather all the relevant data (making fact findings on disputed evidence as necessary) and then feed them into the computer to calculate the result determined by the function. But suppose that the BOP observes that in a certain circumstance, such as determining whether a prisoner should be housed on death row, the result does not change no matter how several parameters vary. Surely, the BOP could issue a regulation that those inconsequential parameters need not be measured in that circumstance. No matter how forcefully the sentencing judge advocated *1171 severe punishment for a man convicted of bank fraud, he should not be placed on death row; so factor (4) in § 3621(b), which relates to statements by the sentencing judge, is inconsequential in deciding whether that particular housing is appropriate for someone convicted of that offense. Why bother collecting the data when they have no effect? One would hope that BOP personnel have better things to do.
Therefore, I would conclude that a BOP regulation governing a particular housing choice can be entirely consistent with § 3621(b) even if the regulation does not require consideration in some circumstances of one, or more, of the factors listed in the statute. When experience or common sense shows that the housing decision will be the same no matter what the evidence regarding a particular factor, the BOP need not go through the motions of collecting the evidence and noting that the one factor cannot outweigh the others in the particular circumstance.
I do not believe that I am saying anything new. Indeed, the Supreme Court not long ago said essentially the same thing: “Even if a statutory scheme requires individualized determinations, ... the decisionmaker has the authority to rely on rulemaking to resolve certain issues of general applicability unless Congress clearly expresses an intent to withhold that authority.” Lopez v. Davis, 531 U.S. 230, 243-44 , 121 S.Ct. 714 , 148 L.Ed.2d 635 (2001) (brackets and internal quotation marks omitted). I am unpersuaded by attempts to exclude that principle from the present context.
There remain, however, further questions whether the BOP regulation at issue in this case, 28 C.F.R. § 570.21 , was adopted in accordance with proper procedures and whether the BOP has justified it as a reasonable application of the statutory factors. I would leave those questions for the district court to resolve in the first instance. I would note, however, that the rule appears reasonable. Prisoners may well not benefit from more than six months in a halfway house. And providing a prisoner with the relative freedom of such a setting for more than 10% of his or her sentence would seem to undermine the purpose of imposing the full sentence in the first place.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9499490. Public record. Not legal advice.